//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] NSWIRComm 107
Industrial Relations Commission (NSW)
2011-07-11
Staff J, Mr P
Original judgment source is linked above.
Judgment 1Delta Mining Pty Ltd ("the defendant"), is a diverse business providing a range of services to the coal mining sectors mainly in the Illawarra region. Its services include the provision of daily labour hire for specific tasks in respect of the development of coal mines and their production. 2The defendant and Southern Colliery Maintenance Pty Ltd ("Southern Colliery") were parties to a special service agreement with Illawarra Coal Holdings Pty Ltd ("Illawarra Coal"), as agent for and on behalf of Endeavour Coal Pty Ltd ("Endeavour Coal"), a company incorporated in the BHP Billiton Ltd framework. 3Endeavour Coal was the leaseholder of "Consolidated Coal Lease 767" at the Appin Colliery. One of the mining areas within the Appin Colliery was identified as the "Douglas District" and work performed within that district was known as "the Douglas Project". 4The defendant and Southern Colliery each and independently of the other, supplied labour to Endeavour Coal and other BHP Billiton companies as and when required, for the Douglas Project and other mines. The defendant was requested to undertake the installation of mega bolts in the roof of the mine. 5A decision was made that scaffold was required to be erected in the mine at the Douglas Project to enable the insertion of the bolts into the roof of the mine. The defendant did not have the expertise or skills to supply, install, or erect scaffolding at the mine. A further decision was made by those operating the mine to have Southern Colliery contract to have Waco Kwikform Ltd ("Waco"), a scaffold hire company in the business of erecting and dismantling of scaffold, undertake the work. Waco arranged for a subcontractor, Blue Water Scaffolding Pty Ltd ("Blue Water"), to erect and dismantle the scaffold at the mine. 6On 7 July 2006 at approximately 4.50pm, part of the scaffold collapsed, resulting in Mr Kenneth Evans, an employee of the defendant, falling from the scaffold. Mr Evans sustained two dislocated shoulders, with fractures to his left shoulder and tendon tears to his right shoulder.
The Charge 7The defendant, in an amended application for order, was charged with a breach of s 8(1) of the Occupational Health and Safety Act 2000 (" OHS Act "), by failing to ensure that persons in its employment, and in particular, Kenneth Evans, Aaron Morrison, Wayne Powell, Larry Tynan, Gary Nees and Matthew Withers were not exposed to risks to their health, safety and welfare. The particulars were as follows: Particulars of risk: A. Employees were exposed to a risk of falling through scaffolding. B. Employees were exposed to a risk of being struck by people or objects falling through scaffolding. Particulars of the failure:
Prosecutor's evidence 9Mr P Strickland SC, who appeared with Mr D O'Neil of counsel for the prosecutor, tendered an agreed statement of facts which provided: Participants
Defendant's evidence 13Mr BD Hodgkinson SC, who appeared with Mr D Jordan of counsel for the defendant, read an affidavit of Leslie John Gardner, who is a trainer and facilitator for DeltaSBD Ltd. He was authorised to provide his affidavit on behalf of the defendant. 14He commenced employment with the defendant in February 2002 as the Illawarra Operations Manager. Mr Gardner set out his employment history, qualifications, and experience, which included being employed in the mining industry for in excess of 30 years, with the last 14 years of his career in coal mining, having been heavily focused on improving safety systems within coal mines and minimising risk to employees working within the coal industry. He stated the company was incorporated in 1998, when it commenced operations with three employees. 15Mr Gardner stated that the defendant currently employs approximately 300 employees across the Illawarra region. At about the date of the incident, the defendant employed approximately 230 employees in New South Wales and of those, about 35 employees were employed at the Douglas Project. The defendant's core values include working safely, ensuring safety obligations are met by implementing risk assessment and safe work method systems that demonstrate commitment from management and employees which have practical application and can be measured against outcomes. 16Mr Gardner stated that the defendant is very committed to occupational health, safety and welfare. This is demonstrated by the significant resources, both human and financial which Delta applies towards its operations to ensure that its many undertakings are safe for all employees and non-employees across its various projects. In approximate terms, he stated that Delta would spend an estimated $3 M - $3.2 M annually on safety and training, which equates to approximately six per cent of their annual operating costs. Its health and safety performance is reported to the Board, who has established a risk committee and its role is to support and advise the Board as to compliance in meeting its responsibilities and objectives in relation to health and safety related matters. 17The defendant's commitment to safety commences from its corporate safety Management Plan. Health and safety is a key performance indicator used by the directors in the assessment of line manager's performance and employees at an operational level. Its commitment to safety management and adherence to the occupational health and safety legislation, standards, procedures, rules and regulations is foremost in its business operations. This commitment permeates through all of the defendant's systems and procedures within the jurisdictions it operates. The defendant is committed to providing and upholding high standards in safety, training, employee welfare, and has maintained a continuous improvement process to ensure this occurs. 18The defendant has implemented a comprehensive health and safety system underpinned by the provision of information, training, instruction and supervision and quality systems for the identification, assessment of risks and the implementation of appropriate control measures. 19Its high standards and commitment to safety, training and quality have resulted in the defendant being awarded preferred supplier status by leading corporations in mining and construction such as BHP Billiton, Xstrata, Peabody, Austral Coal, Centennial Coal and Gujarat NRE. 20The defendant uses a number of tools to obtain an overview of how expected behaviours are achieved in the workplace. These include toolbox meetings; pre-shift communication meetings; training system; pre-start-checks; review of hazard reports and audits and management of poor performance standards by employees, particularly in respect of safety. 21The defendant's quality management system is aligned to the requirements of the following Australian International Standards: (a) AS/NZS 9001 - Quality Assurance Systems; (b) AS/NZS 4801 - OHS Management Systems. 22The defendant's safety system at the time of the incident was aligned to comply with these standards. Among the principal defendant's corporate documents were a Safety Policy; a Safety Management Plan; General Safety Inductions; Safe Work Procedures ("SWP's"); Golden Rules; New Employee Safety/Training/Management Plan and a Drug and Alcohol Policy. Each of these documents were exhibited to the affidavit. 23As part of the defendant's Management Safety System, it has various avenues for review and improvement of safety which include bi monthly Board meetings; monthly Board reports; six monthly Risk Committee meetings; monthly senior management safety review meeting; monthly Managers' meetings; Safety Committees; Business Unit Safety Manager meetings; toolbox meetings; pre-shift communication meetings, and quarterly business unit safety system audits. 24There are specialist health and safety personnel at the corporate level, and business unit level. The defendant has in place a systematic approach for the gathering and distribution of information, which are detailed in the affidavit. Supervisors regularly inspect all areas and tasks undertaken by the defendant's employees. It has a strong corporate policy of not supervising other contract employees at any site. 25Mr Gardner set out the circumstances surrounding the entering into a contract for the Douglas Project. Endeavour Coal as the operator and Manager of the mine, retained ultimate statutory control of the Douglas Project Site and the defendant was subject to the direction of Endeavour Coal. Another company, Southern Colliery also supplied management labour, who reported to Endeavour Coal and who principally co-ordinated labour requirements and some development and maintenance work. 26As part of the tender process for the Douglas Project, Endeavour Coal conducted a comprehensive safety audit of the defendant's occupational health and safety, training, quality and compliance systems. This included: (a) Comprehensive audit of all safety, training and quality systems; (b) Providing evidence of systems implementation; (c) Systems compliance to legislation; (d) Providing evidence of compliance by employees to stated safety management system; (e) Inspection of Delta's existing underground operations; (f) Providing evidence of compliance to training (for all employees including but not limited to - safety, management, environmental and human resources management); (g) Review of statistical performance for the preceding 3 years in relation to safety performance (Delta bases all statistical information on Australian Standard 1885.1 Measurement of OHS Performance); and (h) Providing evidence and supporting documentation of all training programs. 27The defendant was awarded the status of a pre-qualified contractor. 28Although the defendant had its own safety management system and plan, all persons working on the Douglas Project were required to operate under the Appin Colliery safety Management Plan. 29As the defendant's employees had worked at several Illawarra Coal sites, certain aspects of the Appin safety Management Plan were not unfamiliar to those employees engaged in the Douglas Project. 30Although the Appin Colliery safety Management Plan was project-specific, the defendant still required its employees and sub-contractors to follow the defendant's core values and expected behaviours on the Douglas Project. The defendant's employees completed a Delta induction separate from any site specific induction prior to commencing work with the defendant, which addressed its core values. 31The defendant had at the Douglas Project, employees charged with the responsibility of the management of the project, including the management of the safety, training, health and welfare programs. The Project Manager was Mr Dave Loach; the Project Scheduler, Mr Mick Grey. There were also Shift Supervisors and Crew Team Leaders. 32All employees who worked on the Douglas Project were required to undertake the Douglas Project induction which was conducted over two days and presented through a series of PowerPoint presentations. 33The induction detailed the standards set by the Douglas Project team including safety, health, welfare and training. The defendant identified a number of core modules which it required all its employees to complete prior to the commencement of work at the Douglas Project. Some of the core modules were dealt with during the site induction, such as job safety analysis ("JSA") training, manual handling, hazard identification, risk assessment and PPE use. 34The defendant provided training to employees who had not completed relevant modules or SWP's specific to their duties. To enable the defendant to provide national qualifications, it had contracted with Upskill Australia, an accredited Registered Training Organisation, to accredit the training system as well as the individual's competency achievement. 35Prior to the commencement of the Douglas Project, the defendant had in excess of 100 SWP's which had been developed through previous projects. The defendant identified the relevant SWP's and reviewed and amended them for use at the Douglas Project. It was required to submit all SWP's for review prior to their use. The defendant also introduced safe Work Method Statements ("SWMS") for the Douglas Project. This was only the second introduction of SWMS's at an Illawarra Coal site. The defendant had spearheaded the introduction of SWMS's at the Dendrobium Mine and the success there was transferred to the Douglas Project. 36The JSA was undertaken when an SWMS was not available, or did not cover the task being undertaken (change management) or a new task was introduced. All employees on the Douglas Project received JSA training during the defendant's induction. JSA's were a fundamental aspect of risk management in the safety management system. 37The defendant initiated random drug and alcohol testing of its employees. toolbox meetings were held every week to reiterate key safety aspects, highlight new changes to systems and procedures and provide updated information about the progress of the Douglas Project and to promote the current safety theme for the period. 38Daily client and pre-shift planning meetings were attended by the defendant's project manager, project scheduler and the Douglas Project safety, mining and maintenance and other contracting personnel. This meeting covered underground operations from the previous shift activities and provided information about the oncoming shift and matters forecast or proposed for short term scheduling. These meetings were usually held close to the commencement of each shift. The meetings were used to communicate information about matters arising from the previous shift concerning hazards and the state of the working equipment, status and operational safety matters. 39For each shift a pre-shift communication meeting was held. This meeting enabled all the information gathered from the client and contractors pre-shift planning meeting and shift supervisor meetings to be passed on to employees in a structured format. 40The meetings covered a wide range of subjects including safety matters, status of the underground workings, daily task activities, plant assigned to each employee and the location of those activities, reports, hazard reports and incidents within the last 24 hours, and any general changeover comments or notifications for the shift. 41A number of senior management meetings were held at the Douglas Project where safety, health, welfare and training were included. 42Mr Gardner stated that the defendant did not have the skills and qualifications to design and build scaffolding that was required to provide a safe platform in order to properly secure the roof of the mine by inserting bolts. He acknowledged that he had read the factual background of the incident set out in the agreed statement of facts. Mr Gardner stated that Mr Loach was on leave when the scaffolding was erected. Before going on leave, he prepared a detailed work plan in relation to the installation of additional roof support. He exhibited a copy of Mr Loach's work plan, which included the following instruction: 'Yogi/Mother to sign off the finished structure assessment with Waco Scaffolders - Handover certificate' 43"Yogi/Mother" refers to the defendant's employees Denis Winley (Yogi) and Greg Nees (Mother). Consistent with this instruction it was understood by the defendant's employees that the scaffolders would certify the safety of the scaffolding. 44Following the incident, the defendant has worked diligently to improve its overall safety performance. It has made a number of changes to its safety systems and procedures. 45New scaffolding procedures have been implemented in the event that similar work is required in the future. A copy of the scaffolding procedure was exhibited to the affidavit. Although it had a safety management system in place which had been audited internally and externally, a comprehensive audit of the entire safety management system was undertaken. All findings were closed out by an iterative process during the next 12 months. 46Following the incident, the first priority of the defendant was to provide support for Mr Evans and his workmates. The defendant provided professional counselling services for all personnel involved in the incident for a period of three weeks. It has applied the outcomes and learning from this incident to other operations to enhance its safety systems and to assist in obtaining a risk free workplace for its employees and others who work presently for the defendant. It distributed to all of its sites a safety alert. 47Mr Gardner stated that at all times during the investigation and following the incident, the defendant fully co-operated and assisted the investigating inspectors and complied with its obligations in this regard. It also recognised its culpability. In this respect, the defendant assisted the prosecution further by making available at its own time and expense the defendant's employees to attend conferences with the prosecutor. Those employees co-operated by giving further full and frank information regarding their knowledge of the facts and circumstances. 48Mr Gardner also expressed his deep remorse in relation to the accident. He stated that the defendant's directors and employees were absolutely shocked by the incident which was the first of its kind experienced by the defendant. The defendant acknowledged that it could never fully appreciate the full impact of the injury to Mr Evans on his life and expectations, children, family and friends. Following the accident, the first priority of the defendant was to provide support for Mr Evans, his family and his workmates. Before any return to work, the defendant wanted to fully understand why the accident took place, and has applied its knowledge of why it occurred to other projects for the benefit of its employees. It continues to strive towards the objective of having an injury free workplace. 49The defendant acknowledged and accepted its culpability arising from the incident which created the risk to the health and safety of Mr Evans and his work colleagues. It further acknowledged that it failed in its duty to ensure the workplace was free of risk. 50Mr Gardner set out the assistance and care provided to Mr Evans after the accident. This included on the day following the incident arrangements were made by the defendant to ensure that Mr Evans was provided with all the necessary help and assistance he and his family required. The defendant's Human Resources Manager contacted Mr Evans at Liverpool Hospital and at home on multiple occasions during the period after the incident and provided support and assistance to him. She also visited Mr Evans and his wife at home on numerous occasions. 51To assist Mr Evans' return to work, a comprehensive return to work program was developed. The defendant also provided financial support to Mr Evans after the incident. This included paying costs for taxis, chemists, for massages and bills not directly related to the incident. As part of Mr Evans' rehabilitation, he was appointed as a Control Room operator at the defendant's Colliery. The defendant also arranged for the mowing of his lawn and lawn maintenance at his home. In December 2008 Mr Evans' driver's licence was cancelled and the defendant, aware that his wife did not have a licence, arranged transport for Mr Evans to attend work as the Control Room operator. It also arranged transport to take Mr Evans to social functions.
Relevant principles 52The Full Bench in Morrison v Coal Operations Australia Ltd (No 2) [2005] NSWIRComm 96; (2005) 141 IR 465 succinctly summarised the principles to be applied in determining sentence for an offence under the OHS Act . Their Honours stated at [8] - [15]: [8] The overall approach to be followed in relation to the determination of sentence is to be found in the first instance within the statutory provisions of the Crimes (Sentencing Procedure) Act 1999 and in particular, in relation to these proceedings, ss 3A Purposes of Sentencing and 21A Aggravating, mitigating and other factors in sentencing. [9] In R v Way (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act referred to above are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]: '[I]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.' [10] The starting point for consideration as to penalty is the objective seriousness of the offence. That is a well established sentencing principle and was conclusively affirmed in the Full Bench decision in Lawrenson Diecasting Pty Ltd v WorkCover Authority (NSW) (1999) 90 IR 464 at 474 as follows: '[I]t is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence' ... [11] The principle of foreseeability as a factor in determining the objective seriousness of an offence as part of the sentencing process was considered in the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 646; 99 IR 29 at 62 as follows: 'The question of foreseeability is relevant to the assessment of the seriousness of the offence. We consider that the appropriate approach is that of Walton J, Vice President, in Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27:' 'Whilst the reasonable foreseeability of an accident may not be relevant to the question of liability under the Act (see Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432), the degree of foreseeability is a significant factor to be taken into account when assessing the level of culpability of the defendant. The existence of a reasonably foreseeable risk to safety which is likely to result in serious injury or death is a factor which will be relevant to the assessment of the gravity of the offence.' [12] On the issue of foreseeability, the Full Bench in Capral also stated at 646; 62 - 63: 'The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209 - 210) in these terms: '... reliance on "hindsight" must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy. So much is clear from the structure and language of the section which is premised on the requirement to 'ensure ... health, safety and welfare at work' and the decided cases which make plain the nature of the obligation.' [13] It is also necessary to consider the damage and injury suffered in the context of the evidence and "in light of the principles which have been laid down in relation to the relationship between the seriousness of injuries which have been suffered, or which may have been suffered, and the gravity of the offence" ( Capral at 650; 66). On that point the Full Bench in Capral stated: 'We consider that the relevant principle can be stated in this way. The gravity of the consequences of an accident, such as the damage or injury, does not, of itself, dictate the seriousness of the offence or the amount of penalty. However, a breach where there was every prospect of serious consequences might be assessed on a different basis to a breach unlikely to have such consequences. The occurrence of death or serious injury may manifest the degree of seriousness of the relevant detriment to safety: Tyler v Sydney Electricity (1993) 47 IR 1 at 5, Inspector Hannah v Wonar Pty Ltd (1992) 34 AILR 377 at 378, Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456, Wong v Melinda Group Pty Ltd (1998) 82 IR 118 at 131, WorkCover Authority of New South Wales v Albury City Council (1999) 90 IR 397 at 408 - 409, Lawrenson Diecasting Pty Ltd (at 476), WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (at 428) and WorkCover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) (at [22]).' [14] The principles of general and specific deterrence are also relevant in sentencing. The approach to be taken on that issue was also dealt with in some detail in Capral at 643 - 645; 59 - 62. Without detailing all that the Full Bench had to say we consider the approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench in Capral at 644; 60 as follows: '[B]oth aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Workcover Authority (NSW) v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39; (2000) 99 IR 163 at [40]- 43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.' [15] In the context of the above well established sentencing principles it will also be necessary to have regard to those general matters going to aggravation, mitigation and other factors identified in s 21A of the Crimes (Sentencing Procedure) Act relevant to the respondents before the Full Bench. As was said in R v Way at [56]: '[I]t is not to be overlooked that there is a well established body of principles that have been developed by the courts over a long period of time. By providing guidance in the form of a list of aggravating and mitigating factors in s 21A, the Parliament did not intend to overrule or disturb those principles or restrict their application. In so far as those principles refer to factors, whether objective or subjective, that affect the "relative seriousness" of the offence, they are expressly preserved by s 21A(1)(c).'
Consideration 53Counsel acknowledged that in accordance with the principles that I have set out above, that the primary consideration in sentencing requires a determination of the objective seriousness of the offence. This involves, as Mr Hodgkinson submitted, examining the nature and quality of the offence, as set out in the agreed statement of facts and the evidence. 54In considering the seriousness of the offence, it is relevant to set out the important matters. The defendant, in recognising that it did not have the expertise or skills to supply, install, or erect scaffolding at the mine, made a decision to have Southern Colliery contract with Waco to do the relevant scaffolding work. A representative from Waco attended the mine at the request of the defendant's Project Co-ordinator for the Douglas Project, Mr Loach, to discuss the underground scaffold needs for the bolting installation work. Shortly after this meeting, Waco arranged for a subcontractor, Blue Water, to provide Waco with a quote for performing the erection and dismantling of the scaffold at the mine. 55On 15 June 2006, Waco received a fax from the defendant setting out the scaffolding requirements for the bolting work and suggesting that Waco and Blue Water attend the mine on 21 June 2006 to participate in a risk assessment. 56On 19 June 2006, Mr Gary Johnson, Waco's Sales Representative, prepared a hire agreement between Waco and Southern Colliery. Mr Johnson, in consultation with Waco's Engineer, designed the scaffold to be erected at the mine based on his discussions with Mr Loach as to the requirements for undertaking the bolting. Also on 19 June 2006, a qualitative risk assessment for the Douglas Project in relation to the installation of the scaffold was commenced. Representatives from the defendant were involved in the risk assessment. The focus of the risk assessment was upon the task of installing mega bolts from the scaffolding rather than the erection of the scaffold. However, the controls indicated as necessary for the risks arising from the erection and dismantling of the scaffold were "scaffolding company standards and procedures". Mr Loach, an employee of the defendant, was identified as the person responsible to ensure the treatment options were brought into effect. The scaffold Handover Certificates for 30 June 2006 and 7 July 2006, when the work was completed, failed to indicate whether or not the scaffold "Passed Inspection". The heading "Passed Inspection" was left blank. The Certificate was signed as being received by Mr Greg Nees, an employee of the defendant at the time, and Mr Clayton Love, an employee of Endeavour, for the work done on 30 June 2006. Mr Larry Tynan, also an employee of the defendant, signed the Handover Certificate in respect of the work completed on 7 July 2006. 57The incomplete Handover Certificates should have alerted the defendant that a proper inspection of the scaffold had not been carried out. Furthermore, the Handover Certificates indicated that changes had been made to the design of the scaffold. The defendant should have identified that the Handover Certificates were not properly completed and referred to changes to the design of the scaffold. The defendant should have required the scaffold to be inspected by Waco in its capacity as the principal scaffold contractor and designer of the scaffold. It was these failures and the failure of the defendant to comply with the special services agreement between itself and Illawarra Coal, as agent for Endeavour Coal and the mine contractor Management Plan and Fatal Risk Control Protocol that gave rise to the failure to construct the scaffolding safely which put employees of the defendant at risk of serious injury, or death, as a result of falling from a height of 3.3m. 58Mr Hodgkinson submitted that in determining the nature and quality of the offence, it was important to understand the role of the defendant: it realised it did not have the expertise to build the scaffold; Blue Water failed to carry out a proper inspection of the scaffold on 7 July 2006; it did not have a checklist of items of the scaffold to inspect and did not check the scaffold component by component, as was required, to ensure that the design drawing had been followed. 59The Australian Standard requires inspection. Waco also had an obligation to ensure that Blue Water undertook an inspection. The work sheet for 7 July 2006, records that Blue Water's employees, Stephen and Danny King, were inducted. The defendant's 24 hour Douglas Project Shift Instructions records that on 7 July 2006, the defendant's employees were assisting scaffolders in erecting scaffold for 12 line mega bolting. The short form subcontract agreement with Blue Water provided that: "The Subcontractor must perform the Works (sic) safely and so as to protect persons and property...". 60Waco's OHS Management Plan required Blue Water to "erect and dismantle scaffold as per drawings supplied and its company's Safety Policy attached to the Plan provided to Blue Water required all statutory standards to be met and stated that "inspection programmes will be established for all work sites. All deficiencies will be reported and corrected". The OHS Management Plan also under "Skills and Competencies" provided that Waco would ensure its employees and subcontractors were adequately trained to a level of competency sufficient to ensure health and safety when at work. It also made provision for toolbox talks. 61The Illawarra Coal qualitative risk assessment required the defendant's Mine personnel to assist in the manhandling of the scaffolding with the person responsible being Mr Loach. Illawarra Coal's Contractor Management Plan required under the heading "Scaffolding after installation" that testing should be done in accordance with the recognised standards. 62The BHP Billiton Appin Colliery Mine Safety Management System also made provision for a pre-start inspection to be performed upon the completion of installation of any equipment. Both the defendant and Waco who was charged with a similar offence, failed to ensure a proper inspection of the scaffold was undertaken. 63It was foreseeable that if there was no proper inspection of the scaffold after it was constructed in circumstances where there had been a failure to properly erect the scaffold, there was a risk that an employee could fall from a considerable height from the scaffold. Falls from scaffolds are a known risk and the reason why, according to the Australian Standard, a proper inspection is an essential component of any safe management plan. 64The existence of a reasonably foreseeable risk to safety that is likely to result in serious injury or death is a factor that will be relevant to the assessment of the gravity of the offence: Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 476; Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610; (2000) 99 IR 29 at 81; Department of Mineral Resources of NSW (McKensey) v Kembla Coal and Coke Pty Ltd (1999) 92 IR 8 at 27. 65The existence of simple and straightforward remedial steps that could have been taken by the defendant to avoid the accident is relevant in assessing the seriousness of the offence: see Kembla Coal and Coke at 27. 66The defendant has designed and implemented a new procedure for erecting scaffolding, which was exhibited to Mr Gardner's affidavit. It contains detailed provisions for a handover certificate. It also provides: In each case, a Delta SBD supervisor must ensure that no work is carried out from the scaffold unless written confirmation has been obtained that the scaffold is complete. The person who carries out compliance inspections (in accordance with the Australian Standards) and provides the written confirmation must be competent and independent to the erector of the scaffolding. Suitable persons are those with an appropriate scaffolding certificate of competency, a recognised scaffolding inspection qualification, or the designer. 67Although damage or injury to employees does not, of itself, dictate the seriousness of the offence or penalty, a breach where there was every prospect of serious consequences, may be assessed on a different basis to a breach unlikely to have such consequences. In such a case, the occurrence of death or serious injury, may manifest the degree of seriousness of the relevant risk: Maddaford v CSR Limited and Mulgoa Quarries Pty Ltd [2004] NSWIRComm 337 at [17] - [18]. See also Capral at [94] - [95]; WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Ltd (2000) 95 IR 383 at 428; Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 at [32]. In the present case, Mr Evans suffered serious injury. 68The seriousness of the risk, its foreseeability, and the ease of removing the risk renders this to be a serious breach. 69However, Mr Hodgkinson reminded the Court of the observations of Walton J Vice-President in Inspector Howard v Baulderstone Hornibrook Pty Ltd [2009] NSWIRComm 92; (2009) 186 IR 125 at [241], [242]: 241 There is now ample authority for the proposition that the contribution of another entity to a risk to safety may be considered in mitigation in the assessment of penalty of a defendant. The authorities range from cases such as the present, where the contributing entity has provided services or advice which have contributed to the detriment to safety ( McDonald's ) to, more commonly, cases where the entity or entities are engaged in a common project, enterprise or task with the defendant which carries out the role of a principal, contractor or fellow sub-contractor: Morrison v Waratah; Morrison v Powercoal (2005); Workcover Authority of New South Wales (Inspector Mansell) v Anytime Industrial Services Pty Ltd (2001) 110 IR 34; Workcover Authority of New South Wales (Inspector Farrell) v Morrison (No 2) [2002] NSWIRComm 27; (2002) 112 IR 312; Workcover Authority of New South Wales (Inspector Mansell) v Orica Australia Pty Ltd (2002) 116 IR 158 and Workcover Authority (NSW) v Consolidated Constructions Pty Ltd (2001) 109 IR 316. 242 The common thread running through this line of authorities is the principle that where it may be contended that an entity, other than a defendant, has contributed to a detriment to safety (either by advice or common enterprise), the question remains, in assessing penalty, what are the specific culpabilities of the defendant, the statutory obligations placed upon the defendant not having been diminished by the notion that other entities may have contributed to the risk to safety (see, for example, Morrison v Waratah at [46]). The contribution of the other entity is only relevant to the extent that its contribution casts light upon the real level of culpability of the defendant: Morrison v Waratah at [46] and McDonald's at 437. Such an analysis may assist in understanding the reasonableness of the defendants' actions, and may include an assessment of systems which were operating at the time of an incident giving rise to the prosecution. However, in sentencing, a factor, such as a lack of control by a defendant employer engaged on a multi-employer worksite, will normally not result in a significant diminution in the objective seriousness of an offence: Morrison v Waratah at [46]. It will be plain from the foregoing discussion that it would be wrong, in law and principle, to approach such considerations as if some apportioning of the overall penalty between the defendant and the other entity was being undertaken by the Court (see Morrison v Waratah at [46] and Morrison v Powercoal (2005) at [123] and [124]). 70It is appropriate that I take into account the principles referred to by his Honour in determining the defendant's contribution to this offence as a factor in mitigation. In my view and I find, the culpability of this defendant was, as Mr Hodgkinson submitted, one step further removed from the offence than Waco or Blue Water. I find that the failures were not strictly aligned and that the culpability of this defendant was less than that of Waco and Blue Water. In respect of the inspection of the scaffold, Waco was on notice that the design drawing had not been complied with by the subcontractor Blue Water prior to completion, but did not carry out an inspection. Waco was also aware that Blue Water had not worked with transoms 3.1m in length before this project. Furthermore, Mr Johnson, an employee of Waco, was appointed as the supervisor in respect of the building of the scaffold. Mr Johnson accepted that the defendant's employees were not competent to undertake a proper inspection of the scaffold. In accordance with the defendant's OHS Management Plan, Mr Johnson, as site supervisor of the work, was required to hold an intermediate scaffolder's certificate, which he did not hold.
Parity 71The principle of parity which is relevant in this matter, was succinctly stated in the joint judgment of Dawson and Gaudron JJ in Postiglione v R (1997) 189 CLR 295 at 301-302 as follows: The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be treated alike but that, if there are relevant differences, due allowance should be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily, correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However, the parity principle, as identified and expounded in Lowe v The Queen , recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to "a justifiable sense of grievance". If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options. 72Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.
Deterrence 73I consider it is appropriate, once again, to draw attention to the need for employers and contractors working with the erection and dismantling of scaffolding to ensure compliance with the Australian Standards. Employers and contractors must ensure that management plans are implemented, which include that inspection of the scaffolding after erection and thereafter every 30 days is carried out. It is therefore appropriate that I give weight to the need for general deterrence in determining penalty. 74In relation to specific deterrence, the attitude of the defendant to questions of workplace safety and any steps taken to improve safety following the incident are relevant, as is the propensity for the defendant to re-offend. I accept that this is not a case which calls for the imposition of some additional specific punishment in deterring the defendant from further offending against the OHS Act and for the purpose of compelling the defendant's attention to OHS issues so that employees and contractors are not exposed to risks to their health and safety. 75The evidence of Mr Gardner, who I found to be an impressive witness, confirms that the defendant has gone further in dealing with the circumstances that gave rise to this prosecution. It has designed and implemented a new scaffolding procedure referred to earlier in this judgment. 76The defendant had in place extensive and comprehensive OHS policies prior to this incident. It also spends an estimated $3 M - $3.2 M annually on safety and training. I am satisfied that the defendant has demonstrated a commitment to be proactive in respect of the health and safety of its employees. However, the defendant continues to operate as a relatively large employer in a dangerous industry. I include an element in the penalty for specific deterrence.
Subjective factors 77There are a number of relevant subjective considerations. These include in accordance with s 21A(3) of the Crimes (Sentencing Procedure) Act 1999 (" CSP Act "): (I) that the offender was a person of good character; (II) that the offender is unlikely to re-offend; (III) that the offender has good prospects of rehabilitation, whether by reason of the offender's age or otherwise; (IV) the remorse shown by the offender for the offence, but only if: (i) the offender has provided evidence that he or she has accepted responsibility for his or her actions; and (ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both); (V) a plea of guilty by the offender; (VI) assistance by the offender to law enforcement authorities. 78I also propose to take into account the assistance provided to Mr Evans by the defendant. 79I accept that the defendant is entitled to a finding of good corporate citizenship and good character. This is not a case where the defendant showed a disregard to safety and had no established systems in place. 80I respectfully agree with the observations of Kavanagh J in Inspector Olive v Transfield Pty Limited [2001] NSWIRComm 295 at [33] that a court can give positive consideration to the corporate reputation and personal reputation of its directors and find that it has probative force to allow a measure of mitigation of penalty. Her Honour was applying the provisions of the CSP Act to corporate crimes committed under the OHS Act . I would add that the evidence in this matter enables a conclusion to be drawn that the directors of the defendant have clearly, through discharging their duties and responsibilities, contributed in a significant manner to establishing the defendant's reputation of good corporate citizenship. I propose to take such considerations into account in this matter when assessing penalty. 81The prosecutor acknowledged that the defendant pleaded guilty at the earliest available opportunity. I allow a discount of 25 per cent for the plea of guilty in accordance with the principles outlined in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) A Crim R 104. 82Mr Strickland submitted that the defendant had met all its statutory obligations in relation to the Department's investigation into this incident. In addition, the defendant assisted the prosecuting authorities in making available its employees to provide additional statements. 83Mr Strickland submitted that pursuant to s 23 of the CSP Act , the defendant was entitled to a discount: (a) for the assistance that its employees have given to the prosecutor, and (b) because the employees have undertaken to give further assistance to the prosecutor and the authorities. 84The defendant in this case is a corporation. I agree with Mr Strickland that a corporation can receive the benefit of a discount under s 23 of the CSP Act : Inspector Gjaltema v Errington and MJ Baker Constructions Pty Ltd [2010] NSWIRComm 37. 85Mr Strickland acknowledged that if a corporation or its employees did not provide assistance, that could not be held against the corporation in determining sentence. A defendant is not required to provide assistance. However, the question is, if a corporate defendant wishes to provide assistance to the authorities, how can it provide such assistance? Clearly, a corporation itself, speaking through its directors, senior management and where the corporation facilitates its employees in speaking to prosecuting authorities, demonstrates assistance. In this matter, Mr Strickland accepted that the assistance provided to the prosecutor was that the company facilitated four employees to provide information to the prosecuting authority and that it facilitated one employee, Mr Gardiner, to sign a statement. The prosecutor accepted that the signing of the statement itself was of assistance. 86Mr Strickland further accepted that a corporation could not require its employees to give assistance and that s 23 of the CSP Act was a beneficial provision designed to give an additional discount to an offender. 87Mr Hodgkinson accepted that it was necessary for the Court to examine the nature of the assistance provided by a defendant which triggered s 23 of the CSP Act . However, senior counsel observed that a company could do nothing more than facilitate the availability of employees to the prosecuting authority, and in this case, also provide transport from the Wollongong region to Sydney. 88Mr Hodgkinson submitted that the defendant could do nothing more than it had done in this matter, because it was not permitted to compel officers or employees to assist a prosecuting authority. 89Senior counsel submitted that the assistance provided by the defendant in this matter was at the upper level of assistance that it was capable of providing, and cautioned against comparing assistance given by a large corporation to that of a small corporation. I accept that the level of assistance provided by the defendant in this matter to the prosecuting authorities should be found to lie within the higher level of assistance that a corporation could properly provide. However, the assistance provided here, in my view, falls more into the nature of fully co-operating with the prosecuting authority. The assistance provided by Blue Water and its director Mr King, was materially different . Such assistance was to the detriment, commercially, of Blue Water and Mr King: Inspector Regan v King [2011] NSWIRComm 105. 90In respect of s 23 of the CSP Act and the principles found in the authorities dealing with that section, I adopt and apply the observations that I made in Inspector Regan v King at [76] - [86]. Mr Strickland submitted that the process of giving credit for a plea of guilty and assistance to authorities must be transparent. The way this is best achieved is by the Judge specifying a notional starting point before specifying a discount, or discounts allowed: R v Waqa (No 2) [2005] NSWCCA 33; (2005) 156 A Crim R 454. 91I propose to allow a combined discount, taking into account the future assistance to be provided by employees of the defendant of 40 per cent.
Victim Impact Statement 92Mr Evans provided a victim impact statement setting out the impact upon him and his life as a result of the injuries suffered in the incident. Mr Evans stated after falling several metres onto a moving conveyor belt, he sustained two dislocated shoulders, with fractures to his left shoulder and tendon tears to his right shoulder. 93Some of the consequences arising from the incident included he "did not have a decent night's sleep for over three months after the incident due to the pain in both shoulders"; "was unable to shower and dress myself without help for a considerable time"; "after six months of rehabilitation I had to have a reconstruction of my right shoulder"; "unable to drive my car for two months after the accident and also after the operation"; "underwent almost three years of physiotherapy and rehabilitation"; "suffered some emotional and psychological issues which have lessened over a period of time. This affected my marriage but things are all good now"; "loss of income while on workers compensation and unable to do overtime"; "unable to work in the mining industry again"; "unable to surf due to the pain and discomfort it causes"; "unable to do any work or activity above shoulder height due to pain and discomfort"; "disappointment and resentment towards the people responsible"; "they did not contact me to apologise or enquire about my health at all after the accident." 94In Inspector Sharpin v A Team Concrete (Aust) Pty Ltd [2004] NSWIRComm 182 at [138] I observed: Victim impact statements presently serve two distinct purposes. In the case of family victims, where a family member has died as a result of a breach of the Occupational Health & Safety Act 2000, it provides an opportunity for the family to express their feelings of grief and loss, and allows proper public respect to be paid to these feelings. In cases where there has not been a death, not only does the victim impact statement provide an opportunity for the victim to have proper public respect paid to their pain and suffering, but it also has a role to play in the determination of the appropriate sentence to be imposed by the Court. The statement will explain to the Court the extent of the impact the crime has had on the victim's life.
Penalty and costs 95As the defendant has no prior convictions, the maximum penalty is $550,000. This is a further distinguishing factor to Waco who has three prior convictions. 96Taking into account all the above matters, including the evidence of Mr Gardner, I impose a penalty of $80,000. 97The prosecutor sought an order for costs and a moiety, which I propose to grant. 98Mr Strickland informed the Court that the costs arising from the investigation of the offence totalled $15,000 and sought that the defendant pay one fifth of these costs in circumstances where prosecutions have been brought against other defendants. The defendant agreed to pay its proportion of the investigation costs.
Orders 99I make the following orders:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 August 2011
Inspector Regan
Delta Mining Pty Ltd
(2000) 49 NSWLR 610
(2000) 99 IR 29
(1999) 92 IR 8
(2009) 186 IR 125
(1999) 90 IR 464
(2005) 141 IR 465
(2003) 130 IR 364
(1997) 189 CLR 295
(2000) 49 NSWLR 383
(2000) 95 IR 383
(2004) 60 NSWLR 168
(1999) 90 IR 432
(1993) 47 IR 1
(1996) 83 IR 446
(1998) 82 IR 118
(1999) 90 IR 397
(2000) 99 IR 163
(2001) 110 IR 34
(2002) 112 IR 312
(2002) 116 IR 158
(2001) 109 IR 316